MZYOI v Minister for Immigration
[2012] FMCA 203
•19 March 2012
FEDERAL MAGISTRATE’S COURT OF AUSTRALIA
| MZYOI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 203 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa – procedural fairness – credibility issues – no matter of principle – application dismissed. |
| Migration Act 1958, s. 476 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 222 ALR 411; (2005) 80 ALJR 228; (2005) 87 ALD 512 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 |
| Applicant: | MZYOI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | THE INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1084 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 November 2011 |
| Date of Last Submission: | 25 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanton of Counsel |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Wood of Counsel |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent |
ORDERS
The amended application filed on 3 November 2011 be dismissed.
The applicant pay the first respondent’s costs fixed at $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1084 of 2011
| MZYOI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks review of a determination by an Independent Merits Reviewer with respect to an application for the Minister to permit the applicant to seek a protection visa, or alternatively to grant the applicant a protection visa.
The process involved in this case is discussed by the High Court in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 (‘Plaintiff M61/2010E’).
In this case the application was lodged over six weeks out of time (see section 476 of the Migration Act). The applicant seeks an extension of time (which the Court has power to grant) arguing that the merits of the application are strong, that the delay was caused as a result of him awaiting a grant of legal assistance, and that his ability to obtain legal advice was frustrated by being held in a remote location. It appears to me that there is at least an adequate explanation for the delay, bearing in mind language issues that arise for applicants for protection visas, and the period of the delay. The real question turns upon the assessment of the merits of the judicial review proceedings. In cases of this type, as is the practice of the Court, the matter has been given directions for a full hearing. It appears that the time limit does not apply in light of SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26. I therefore turn to a consideration of the substantive application.
Background
The applicant is a middle-aged man of Hazara ethnicity and a follower of the Shia faith. He is married with children and had been a shop-owner in the Jaghori district of the Ghazni province in Afghanistan. His case as initially put is that around 11 years ago a man (“[ID]”) would regularly come to his store. He has said that [ID] was a relation of his mother. [ID] was a popular commander in the Jaghori district and later killed by supporters of Mullah Irfani with the assistance of the Taliban. After [ID’s] death the applicant said he was imprisoned for 24 hours but his release was secured by elders from his town.
The applicant claims that following [ID’s] death people would intermittently threaten him due to his actual or perceived relationship with [ID] and that they would demand money from him. He said that at one point his photograph was taken and distributed to members of the Taliban. He says that around a week before leaving the Jaghori district that he and his family were assaulted and that he was kidnapped and taken to a former Mujahideen base where kidnappers threatened to kill him and demanded money from him. He said that he had escaped and returned to the Jaghori district where he sold what remained of his stock and commenced his trip to Australia.
The applicant arrived on Christmas Island on 23 February 2010 without a visa, seeking a protection visa. He was consequently interviewed on 26 April 2010 by a delegate of the Minister and had representatives provide the delegate with an article from Professor Maley on 21 May 2010. On 16 June 2010 the applicant was notified that he was not accepted as being a refugee. The applicant sought a review of this decision in late June, and his legal advisers made written submissions in support of that review on 15 July. The applicant was interviewed on 10 October, following which the second respondent recommended to the Minister that the applicant should not be recognised as a person to whom Australia owes protection obligations (such recommendation being made on 24 January). The applicant was not notified of the outcome of this recommendation until 5 April 2011.
The applicant ultimately sought judicial review of the recommendations by way of this application filed on 28 July 2011. The applicant filed his Amended Application, submissions and affidavit in support of an extension of time by early November 2011, and the matter was heard on 25 November 2011. Unfortunately, the issues raised were of sufficient complexity as to require some reflection rather than an ex tempore judgment leading to some delay as a result of the Christmas break.
The Reviewer is not a member of a court, nor a statutory tribunal, but a contractor engaged by the Department to provide advice to the Minister. Judicial review remains open for the reasons set out in Plaintiff M61/2010E, and the breadth of the powers of review are as explained in that decision.
Country information relied upon by the Reviewer indicated that [ID] was assassinated around 1997. It appears he was an Hazara intellectual from the Ghazni province involved in the Shula Javeed movement. According to the country information, whilst [ID] was one of numerous and leading ideologues within an organisation he was not the actual leader of any formal organisation. He appears to have represented and organised the post-Maoist secular left-leaning intellectuals. It is thought that he was killed on the orders of Mullah Irfani as he had the potential to pose a secular/leftist challenge to the clerics and commanders controlling the Hizb-I Wahdat at the time.
Relevantly the Reviewer concluded:
[60] For all of the above reasons I do not accept that the claimant has provided a truthful or credible account as to why he left Afghanistan. I do not accept that he was targeted by Irfani or his men after [ID] was assassinated in 1997 because he had a relationship with [ID]. I do not accept that Mullah Irfani’s men had the claimant imprisoned. I do not accept that Irfani’s men came to his shop and continually threatened and demanded money from him. I do not accept that they gave his photo to the Taliban. I do not accept that in 2009 a week before the claimant left Australia Irfani’s men came to his house kidnapped him demanded money from him and threatened to kill him. I am of the view that the claimant has fabricated these claims in order to strengthen his claims to refugee status. (emphasis added)
With respect to his concerns of persecution as a result of him being a Hazara:
[61] The claimant is from Haydor Jaghori Ghazni. I have considered a number of different reports about Jaghori. I accept that it is a district entirely populated by Hazaras. I accept that the district is currently safe and relatively stable compared to Pashtun districts in Ghazni. I accept the people in Jaghori district, enjoy better educational and health facilities than neighbouring provinces due to their better security environment. I accept that the Taliban remain at the outskirts of Jaghori. I accept that Jaghori remains out of reach of Taliban control due to the military power of Hizb-I Wahdat Khalili/Nasrfaction. I do not accept that the claimant faces a real chance of serious harm amounting to persecution by the Taliban because he is a Hazara from Jaghori. (emphasis added)
The Reviewer also turned its mind to the issues relating to travel in and out of Jaghori saying:
[62] The claimant has a shop in the bazaar at Sangi Masha. He stated his father started the business in 1957. The claimant sells cloth which he buys in huge quantities from Ghazni and Kabul. He stated that he travels to Ghazni 5-6 times a year to get cloth from Pakistan and he travels to Kabul twice a year to get cloth from China and Korea. The claimant stated he has no difficulty transporting the cloth as he gives to a driver and uses a Pashtun name. He stated he and his father have successfully been transporting cloth this way for over fifty years.
[63] I have considered that the claimant may need to travel in and out of Jaghori to obtain supplies for his shop. I accept that access to Jaghori has become more difficult. I accept that there are three main sources of insecurity on the routes in and out of Jaghori: the Taliban; petty thieves and organised criminals. I accept that the Taliban have focussed their efforts on extending their influence in Ghazni because they view it as a strategic province with proximity and road access to Kabul. It is in this context that they target travellers in and out of Jaghori the majority of whom are Hazaras. I do not accept that the Taliban target these travellers because of their race or religion rather it is part of their strategy to put pressure on and gain control over areas in Ghazni they do not control. I accept that there are three routes connecting Jaghori to Ghazni city and that the most frequently used road passes through the Nawur district and is considered secure. This is consistent with the evidence of the claimant who stated that when he travelled to Ghazni and Kabul he used the Nawur road even though it was longer. The claimant also provided evidence that he has frequently travelled to Ghazni City and Kabul to obtain supplies for his shop but has only been stopped on one occasion. On the evidence before me I am not satisfied that the claimant faces a real chance of serious harm, amounting to persecution for any Convention reason in relation to his travel to and from Jaghori. (emphasis added)
Ground One
Ground one, as it appears in the application, has a number of parts, the first of which relates to the findings of the Reviewer with respect to the claims by the applicant that he had been kidnapped (as set out above).
The Reviewer had formed a negative view with respect to the applicant’s credibility saying at paragraph [52]:
[52] I do not accept the above claims as I did not find the claimant to be a truthful or credible witness for all of the reasons set out below.
The Reviewer recounts:
[54] At the interview the claimant did not know that [ID] had been detained by the PDPA government in PUL iChukri prison because of his political activities. He did not even appear to know that [ID] had lived in Kabul. He did not know when [ID] had moved to Jaghori. He did not know what political activities [ID] had been involved in when he moved to Jaghori. The claimant claimed that [ID] was a socialist yet when I asked what were his views he only stated he was in favour of children going to school and was against the Taliban. When I asked if he knew anything else about his ideas he stated he wanted children to have a free life and he was against the Taliban. I am of the view that if [ID] was a distant relative of the claimant who often came to his shop and talked to the claimant he would have been more familiar with his life, his political activities and his views.
[55] The claimant claimed that he was of interest to Irfani because [ID] often visited his shop. When I asked the claimant when [ID] had started visiting his shop he at first stated when he was in Jaghori he constantly visited me. He then claimed he started visiting the first day he returned to Jaghori. He then stated he visited his shop 1-2 years before he was killed. He then stated he visited the shop 3-4 years before he was killed. I formed the view because the claimant tried to avoid answering my questions then changed his evidence that he was fabricating his responses to when [ID] had started visiting his shop.
Other difficulties with the applicant’s evidence are set out at paragraphs [56] to [59] of the Reviewer’s report.
The applicant argued that the officer who initially assessed his claim accepted that he had been kidnapped in early 2010. At page 19 of the Refugee Status Assessment Record the officer states:
…After interviewing the claimant, I am willing to accept that he was kidnapped in early 2010 by a group of people who may or may not be linked to Erfani, however I believe that the kidnapper’s motives appear to have been financial and not imbued with a political hue. It appears to have been a criminal act perpetrated against an individual, the claimant, who is considered by the kidnappers to be wealthy and capable of paying a ransom for his release. (See page 101 of the court book) (emphasis added).
The applicant argued that he had not been accorded procedural fairness, claiming that he was not challenged or tested by the Reviewer when he gave his account of the kidnapping incident, and that in light of the first assessment the applicant was entitled to assume that this was not a live issue in the hearing before the reviewer.
There is no doubt that the kidnapping claim is a key aspect to the applicant’s case and of significance. Similarly the basic legal theory behind this ground of appeal is clearly sound. However, one must turn to the transcript of the interview in order to assess whether or not the applicant was put on notice that this was an issue. At page 28 of the transcript the Reviewer clearly indicated that she had concerns about the terms of the applicant’s claim. At lines 1 to 10 she said:
[Reviewer]: I’m sorry – see, in your statement I’ve just noticed you said that [ID] was killed 11 years ago. You know, the timing just doesn’t work out about that; do you know what I mean? It’s a difficulty with the changes to your story as to when [ID] died and when these threats started. But I want to move on from that now because you’re claiming that if [ID] died now 13 years ago that you were threatened for 13 years yet you remain running a business and living in Jaghori. And I have a difficulty with the fact that if you say you were threatened – though your changes to your story as to how often you were threatened – that you would remain running a business; running a very successful business yet you’re claiming you’re being threatened everyday. Would you like to comment on that? (emphasis added) (see page 28 of the transcript of the interview)
And later at lines 34 to 43 she said:
[Reviewer]: Okay. I also have difficulty with the fact that this continues for 13 years when [ID] is no longer a threat to anyone and yet coincidentally just a week before you leave you suddenly have this incident of people coming to your house and asking about your relationship with [ID] which they had asked you 13 years ago and I have real difficult with that story; I just find it implausible that – I mean, you’re smiling now but I don’t really, you know, I think it’s very difficult when, you know, if 13 years ago they imprison you and ask you about [ID] why 13 years later they come to your house and still be asking you about your relationship. Can you explain that to me? (emphasis added)
Concluding at lines 14 to 15 on page 29 the Reviewer offered a further opportunity for submission by inviting the adviser to make any further submissions saying:
[Reviewer] Okay. Advisor, do you want to make any submission about the difficulties that I’ve indicated with the claimant’s story.
[Advisor]: Okay. With respect to the inconsistencies with the dates the only thing that I can really submit is that he is illiterate and that there is a huge emphasis culturally placed on dates and knowing specific dates and they generally associate events with certain part of their life. With respect to his son’s age the only thing I can suggest if you’re interested in – willing to hear this suggestion is maybe if you have a look at the entry interview and maybe if it states that age, otherwise…
[Reviewer]: It doesn’t have it.
[Advisor]: No? And…
[Reviewer]: Lack of knowledge of [ID].
This follows on from earlier exchanges in the transcript. At page 19 the Reviewer questioned the applicant as to the details of the events that took place the night that he was kidnapped. The questioning was quite detailed, extending for a number of pages in the transcript. All of this must be seen in light of comments made at the commencement of the interview by the Reviewer, recorded at lines 34 to 41 of page 2 where the Reviewer said:
[Reviewer]: If at any time during the course of the interview you are not happy with the interpreting, please let me know immediately by raising your hand like that. I’m just going to explain my role in the process. My role is to undertake a fresh rehearing of your claims. I will make a completely new and independent assessment of the evidence and make a recommendation as to whether you are found to be a refugee. My role is to provide advice and a recommendation only. Once I’ve completed my report and make a recommendation on your refugee status, this is given to the Minister of Immigration for consideration. (emphasis added)
In light of the interactions at the review hearing it is plain that the Reviewer did not conduct herself in such a way as to lead the applicant to conclude that the kidnapping claim was accepted. Not only did she formally state that she would be making a “completely new and independent assessment of the evidence” at the outset, but the way in which she conducted the interview, and in particular the detailed discussions with respect to the minutiae of the events surrounding the alleged kidnapping make it apparent that this was a real issue at the hearing. This afforded the applicant a proper opportunity to put his case and the details surrounding it.
The case is also further weakened by the fact that even at the initial assessment phase the findings with respect to the kidnapping were not entirely in the applicant’s favour in any event, the officer not accepting that the kidnapping as claimed was by Irfani’s men or at Irfani’s instigation (see court book 101). In these circumstances I am not persuaded that the Reviewer failed to afford the applicant procedural fairness. In the circumstances the applicant cannot succeed with respect to this part of ground one.
The second part of ground one is a claim that adverse country information had not been put to the applicant allowing him to comment upon it. At paragraph [49] of the decision the Reviewer says:
[49] I have placed significant weight on the advice from a range of organisations. The UNHCR in Afghanistan noted that there was a well organised Hazara people smuggling operation in existence and that the migration patterns of the Hazaras were out of sync with levels of threat and more in keeping with economic imperatives associated with labour migration…
The applicant refers to a passage in the transcript at page 31, line [39] to 32, line [2] as follows:
[Reviewer]: I would like to put to you the information that we have in the latest report from DFAT that limited employment opportunities; security challenges and a perception of discrimination are encouraging migration from Afghanistan. Would you like to comment on that?
[The Interpreter]: I don’t know about this but I have been inside Jaghori so I’m telling you about inside Jaghori. Anyone who’s willing to work plenty of work there but in a country I was living was a country I was living with someone who was carrying a mattress box to burn the school; who was carrying the bomb to his west to kill others. That was the condition I was living there.
Earlier on however the Reviewer had said (at page 31, lines [10] to [26] of the transcript):
[Reviewer]: I said at the beginning of the interview that I needed to put to you country information that I have for you to comment. There have been two reports from our Department of Foreign Affairs and Trade; one in February 2010 and one more recently in September 2010 and the information that they have provided to us is that the conditions for Hazaras have improved greatly since the Taliban has lost power. Hazaras are making the most of the – sorry. Hazaras are making the most of the opportunities now available to them; this is reflected in high levels of education and an active involvement in the political process.
Reports based on interviews with the United Nations officials, Afghan human rights organisations and Hazaras advocates have noted that while there are strong perceptions of discrimination and a sense that development needs in the Hazaras…have been neglected. Hazaas did not live in systematic persecution as they did under the Taliban and that currently Hazaras are not being persecuted on any consistent basis. Would you like to comment on that? (emphasis added)
The applicant also argued that the source of the information was not put to him during the interview particularly with respect to the information relating to [ID], even though this was given significant weight in the decision. The substance of this information was put to the applicant, as appears in the transcript at page 25, lines [3], [12] and [29], and page 29 at line [3].
The Reviewer is not required to put the precise source of each piece of information it may rely upon in conducting the process. Nor is the Reviewer required to give specific references during the course of the hearing. It is clear from the transcript that the substance of the information, or as it was described during argument “the gist of the information” was put to the applicant to allow him to comment upon it.
It was clear at the hearing that the Reviewer had information that she was relying upon, for example where at page 25, lines [3] to [5], the Reviewer says:
[Reviewer]: Sorry, I can also put to you that he had no formal organisation; he didn’t lead a formal organisation so that is also a real concern to me because your description of [ID] is not consistent with the information I have about him.
Yet the applicant never sought from the Reviewer any information as to the source of that information or precise reference in order to challenge the proposition or answer it.
Counsel for the Minister relies in particular upon comments of the High Court in VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 100 (paragraph [29]) where the High Court said:
So much may readily be accepted. But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant's response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the "problem of confidentiality". Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.
In viewing the transcript as a whole in the context of this particular case it is difficult to conclude that the applicant was not afforded procedural fairness in this respect.
Further argument was raised that during the course of the interviews the Reviewer put to the applicant that [ID] was killed in 1997 (see transcript at page 25 line [29]), when the country information apparently stated that ID was killed in “around 1997”. Firstly, the difference between the precise year or the time around 1997 does not appear to be significant in the context of the overall findings in this case, and in any event the interpretation of and findings with respect to the evidence are a matter for the Reviewer and not a matter for judicial review in this court.
Ultimately the grounds relating to the Reviewer’s assessment of the applicant’s credibility were not pursued.
Ground Two
With respect to the second ground, grounds of appeal 2.1 and 2.2, which effectively went to matters of weight, were quite properly not pursued.
Ground 2.3 claims that the Reviewer failed to consider whether the security situation in and around Jaghori province had resulted from a failure of the state to protect Hazara people and whether this resulted in the applicant having a well-founded fear of prosecution. In his outline at paragraph [24] the applicant’s counsel described the argument as being one of:
[24] Further, the Second Respondent failed to consider whether the situation in Jaghori Province, in effect being surrounded by the Taliban, petty thieves, and organised criminals, had resulted from a failure of the Government to adequately protect Jaghori District given it was predominantly an Hazara area. The Second Respondent failed to consider whether the Applicant had a well-founded fear of persecution due to a failure of the Afghan Government to protect people working in and around Jaghori district; MIMA v Respondents s152/2003 (2004) 222 CLR 1.
On this issue there are two aspects. Firstly, the question of whether or not there is a real risk of persecution of the applicant, and the second is whether or not it is for a Convention reason.
The findings at paragraph [63] of the Reviewer’s decision (as set out above) appear to indicate that there is no acceptance of the proposition that there is a real risk of serious harm to the applicant when travelling from Jaghori to Ghazni city. The last sentence of that paragraph, however, is ambiguous in that it is unclear whether the Reviewer is finding that they are not satisfied the applicant faces any real chance of serious harm amounting to persecution, or alternatively whether the finding is that there is not a chance of serious harm as a result of a Convention reason.
However, having regard to the High Court’s comments in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1 and reading the sentence in context of the paragraph in which it appears, it is clear that the Reviewer has formed the view that there is not a real chance of serious harm to the applicant with respect to this travel. This is supported by the findings that the most frequently-used road passes through the Nawur district and is considered secure, and the applicant’s evidence that he had frequently travelled to Ghazni city and Kabul to obtain supplies for his shop and had only been stopped on one occasion.
I have concluded that on a fair reading of the Reviewer’s reasons the finding is to the effect that there is not a real chance of serious harm, nor is any harm or persecution for a Convention reason. The Reviewer has made adequate findings that there is not a real chance of serious harm. I do not need to go on to consider the Reviewer’s reasoning with respect to whether or not the Taliban’s desire to take control of the Ghazni areas, which are predominantly Hazara areas, should be found to be within the meaning of the Convention rather than being categorised simply as criminal activity or attempts of a particular group to obtain control over a strategic area, as the applicant has not established that he is at risk of serious harm.
Ground Three
Ground three claims that the decision of the second respondent was illogical, arguing that once a Reviewer had accepted that the district was almost entirely populated by Hazaras and that there was some risk if the applicant were to travel out of Jaghori as a result of the Taliban and criminals, that it was illogical to conclude that the attacks by the Taliban were not as a result of the race, religion or social group of the Hazaras but merely part of their strategy to maintain pressure on that area and gain control over areas of Ghazni that they did not presently control. As counsel for the applicant put it in his outline at paragraph [27]:
[27] With respect, it is illogical to therefore conclude that the basis for persecution for those travelling in and around Jaghori by the Taliban, was not for a convention reason, but rather only for strategic reasons. The “tactical” reasons for the Taliban putting pressure on Jaghori District cannot be divorced from the race and religion of those who live in, and travel to and from, the District. Such an approach, if permissible, could not be used to justify any act of persecution when there is some “strategic” reason for a perpetrator to engage in such violence, notwithstanding that those affected are from particular racial or religious groups.
As the applicant has not established that he is at risk of serious harm he must fail in his application, regardless of this issue. As a result this ground need not be determined here, however this should not be taken as an endorsement of this passage.
Conclusion
As the applicant has not established a ground I must therefore refuse the application. The parties have agreed that the costs should follow the event on the Federal Magistrates Court’s scale. I therefore order that the applicant pay the first respondent’s costs fixed at $6,240.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Riethmuller FM.
Date: 16 March 2012
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